Calcutta High Court
Smt. Sampat Devi Kulthia vs Smt. Sudha Soni & Anr on 3 December, 2018
Equivalent citations: AIR 2019 CALCUTTA 44, (2019) 1 HINDULR 683
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY & INTESTATE JURISDICTION
ORIGINAL SIDE
TESTAMENTARY SUIT NO.6 OF 2013
P.L.A. No.168 OF 2010
IN THE GOODS OF :
BUDHMAL KULTHIA
AND
SMT. SAMPAT DEVI KULTHIA
... Plaintiff
-Versus-
SMT. SUDHA SONI & ANR.
... Defendants
BEFORE:
THE HON'BLE JUSTICE SAHIDULLAH MUNSHI
December 03, 2018.
Mr. Utpal Bose, Sr. Adv.
Ms. Noell Banerjee, Mr. Dipanjan Dey, Mr. Dipak Dey ... For the plaintiff Mr. Sailesh Kumar Gupta, Ms. Rabiya Khan, Mr. Dilawar Khan ... For the defendant no.1 Mr. K. C. Garg, Ms. Sunita Agarwal ... For the defendant no.2 The Court : P.L.A. No. 168 of 2010 was filed by the propounder Smt. Sampath Devi Kulthia, the plaintiff, praying for letters of administration of the Will and Testament dated 26th October, 2002 of the deceased Budhmal Kulthia as sole beneficiary under the Will and Testament of the said deceased with effect throughout the Union of India.
It is the case made out by the propounder that Budhmal Kulthia, the deceased, who was during his lifetime and at the time of his death a Hindu inhabitant governed by Mitakshara School of Hindu Law, departed his life at 81, Muktaram Babu Street, Kolkata-700007 on 4th April, 2004 as is evident from a death certificate annexed to the petition and marked with the letter 'A'. Prior to the death of the deceased he made and published his last Will and Testament in Hindi language and character on 26th October, 2002 in respect of his assets and properties whereby the said deceased declared the plaintiff as the sole beneficiary and legatee to the said last Will and Testament dated 26th October, 2002. The plaintiff has filed the original Will in Hindi language and character together with English translation thereof duly certified to be the English translation of the Will in Hindi by an interpreting officer of this court. The said translation of the original Will is marked as Annexure 'B' to the petition. The original Will in Hindi has been tendered in evidence and has been marked as Exhibit 'A'. From the translated copy of the Will it appears that the testator has put his thumb impression (LTI) on the first page of the will (Rs. 10 stamp paper) and thereafter on plain pages being page nos. 2, 3 and 4 being part of the original Will. The testator declared that he put his thumb impression on the will out of his own accord 'as a signature'. The original Will appears to have been signed by the following persons after the signature of the testator that is, (1) Jagdish Prasad Soni, (2) Om Prakash Jadhia, (3) Rajkumari Bhama, (4) Sudha Soni, (5) Dr. Sarat Kr. Das.
LTI of the testator has been attested by Shri A.K. Biswas, Notary, Government of India on 26th October 2002. The deceased stated in the will that had he died intestate he would have the following heirs (a) Sampath Devi Kulthia, wife of Late Ashoke Kr. Kulthia, a pre-deceased son of the testator. (b) Smt Kiran Soni, Wife of Shri Sachin Soni and daughter of late Ashoke Kr. Kulthia and Smt. Sampat Devi Kulthia (propounder), (c) Smt. Rajkumari Bhama @ Bharma @ Soni, wife of Ramesh Kr. Bharma, a married daughter of the testator. (d) Smt. Sudha Soni, wife of Shri Pawan Kumar Soni, the married daughter of the testator.
Although, two daughters of the deceased signed the will as witnesses but on their refusal to give consent to the letters of administration in favour of the propounder, citations were issued. Initially the defendants did not file any caveat but subsequently on their prayer this court by its order dated 6th September 2016 while disposing of G.A 2669 of 2016 granted liberty to the defendant to contest the probate proceeding subject to payment of cost and the defendants filed their respective caveats in modification of the order dated May 16, 2012 whereby the court held that proceedings be treated as a non-contentious cause with regard to Rajkumari Bhama, who had not filed any caveat in response to the general citation issued earlier. But however, Smt. Sudha Soni was granted liberty to file her affidavit in support of the caveat by 4th June 2012. Affidavits were filed and the suit was treated to be a contentious one. It is notable that although affidavits have been filed in support of their caveat but the defendant never appeared before the court and deposed in box in support of their affidavits. Therefore, it is a case where no evidence has been laid in support of the pleading.
However, in absence of the evidence the affidavit which the defendants have filed can be glanced through for the purpose of disposal of this case.
Defendant no.1 Rajkumari Bhama stated in her affidavit in support of caveat filed on 29th September 2016 that her father was blind and after the death of her brother Ashoke Kumar Kulthia in 2002 he was ill and he had to be hospitalized on many occasions. On the request of the plaintiff she signed on blank sheet of papers on the plea that such signature would be required for hospitalization of her father and she signed on blank sheet of papers in good faith. And such blank sheet of papers has been converted into purported document namely the will of the deceased. According to her, her father was neither physically nor mentally capable of making will and the plaintiff took advantage of the situation. She has denied that upon the death of Ashok Kumar Kulthia "Budhmal Kulthia and sons, HUF" could be dissolved. The defendant no.1 has also stated that the alleged will is fabricated and manufactured document and she has denied the legality and validity of the alleged 'Will'. Exactly similar stand has been taken by the defendant no.2 Sudha Soni and alleged that the Will and Testament dated 26th October, 2002 of the deceased is false, fabricated and manufactured.
Issues have been framed in the instant suit by an order dated November 28, 2016. The said issues are as follows:
1) "Is the last Will and Testament dated October 26, 2002 duly executed and attested as per provision of law?
2) Is the last Will and Testament dated October 26, 2002 fabricated, manufactured and vitiated by fraud as alleged in the written statement?
3) Is the plaintiff entitled to get the order of grant of probate in respect of the last Will and Testament of Budhmal Kulthia dated October 26, 2002?
4) Is the plaintiff entitled to get any other reliefs?"
Although no evidence has been led by the defendants, in order to do justice this Court is inclined to look into the matter in detail. After all, the last desire of a man is to be honoured. If it is correct, then Court has a duty to see that the same is implemented. If it is incorrect and/or false, it is the bounden duty of the Court to see that no undue advantage is taken by anyone by a false and fabricated document and in order to come to a conclusion as to whether the plaintiff is entitled to grant letter of administration as prayed for, I decide the issues separately.
Issue No.1 : while discussing this issue it is necessary to consider the provisions of Section 63 of the Indian Succession Act, 1925 which is set out hereinbelow:-
"63. Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
In the instant case, it is found that the testator has, instead of signing the 'Will', affixed his marks to the 'Will'. In course of examination of the document (Ext. 'A') it is noticed that the Will has been written in Hindi language and character and the testator has affixed his mark (thumb impression) on each page of the said 'Will'. While affixing the mark of thumb impression in the body of the 'Will', testator has clarified as to why he put his thumb impression instead of signing. He has shown the reason of his blindness for putting the thumb impression (LTI). The last thumb impression appearing on the 'Will' at the concluding page and after the conclusion of the 'Will' denotes compliance of Section 63(b) which indicates that the testator put his thumb impression to show that he has concluded the 'Will'. So far Section 63(c) as regards attestation by two or more witnesses is concerned, in the instant case, it is found that as many as five persons including the defendant signed the Will and after the thumb impression something is written in Hindi which sufficiently indicates that the first signatory whose signature has been marked as Exhibit 'A2' and who has identified the signature of the testator to be Exhibit 'A1', has written that the thumb impression is the thumb impression of the testator and it was affixed through him. In every page of the 'Will', however, the thumb impression has not been described as to whose thumb impressions are those. According to the provisions of Section 63, the Will has to be attested by two or more witnesses. From the record it is found that one Jagdish Prasad Soni, who is also an attesting witness, has come before this Court to depose that the Will was executed in his presence and testator duly put his mark on the Will. By attestation it is meant the signing of a document to signify that the attester is a witness to the execution of the document and by Section 63(c) of the Indian Succession Act, 1925, an attesting witness is one who signs the document in the presence of an executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Therefore, in view of requirement of Section 63(c) of the Indian Succession Act, 1925, it is absolutely necessary in order to prove the execution of the Will that the testator himself has signed the Will in the presence of attesters or the testator himself has personally acknowledged his signature in the presence of the attesters. Let the evidence of Jagdish Prasad Soni be now considered to ascertain whether requirements under Section 63 of the Indian Succession Act, 1925 has been complied with or not with regard to the execution of the Will.
The defendants, in their cross-examination, put certain questions to the said attesting witness, Jagdish Prasad Soni. It is profitable to reproduce the questions and answers being Nos.29, 30, 33, 37, 39, 41, 44 and 52 and those are set out hereinbelow:-
"29. Who had drafted this Will?/C.A. of Budhmalji."
"30. By the term "C.A." would you mean to say "chartered accountant"?/ That is so."
"33. Under whose instruction was this alleged Will drafted?/ Budhmal Kulthia has instructed to draft this alleged Will."
"37. When this alleged Will was signed, were you physically present there?/ Yes. I was present there."
"39. Was the Will executed on a plain paper?/ Whatever is there is there. It is a matter of fifteen years hack and I have put my signature in that Will."
"41. Who were the persons present apart from you at the time of execution of this Will?/ Om Prakash Jeria, Raj Kumari Bhama, Sudha Soni, Dr. S.K. Das and Budhmal Kulthia, testator were present there apart from me."
"44. Was he invited on that day for some specific reason or whether he was there for treating someone?/ As a normal visit, he had come."
"52. Were the two daughters, namely Raj Kumari Bhama and Sudha Soni at all aware of this alleged Will?/ They have signed the Will."
From the above questions and the answers given thereto by the attesting witness, Jagdish Prasad Soni, it appears that he has identified the thumb impression of the testator on the Will and he has explained as to why the testator put his thumb impression, because he was blind. He has also mentioned the date of the Will and, ultimately, encircled thumb impression by Budhmal Kulthia, the testator.
From the said questions and answers it is noticed that the suspicious circumstance which has been raised by the defendants has been cleared away by the attesting witness, Jagdish Prasad Soni. He has deposed that the Will was drafted by the Chartered Accountant of the testator. He has deposed that the deceased instructed to draft the alleged Will. He deposed that he was physically present at the time of execution of the Will. He deposed further that at the time of execution of the Will the defendants, Raj Kumari Bhama and Sudha Soni, the daughters of the deceased testator were also present. He deposed that he signed in presence of the testator as well as in presence of the other witnesses. The witness further testified that the mental and physical health of the testator was sound and this is available both in chief and cross-examination particularly in question no.27 where the witness was asked "What was the mental and physical health of Budhmal Kulthia when he had made this Will?" In answer the witness deposed - "He was absolutely fit and sound."
The attesting witness in cross-examination maintained the aforesaid stand with respect to the sequence of signatures that the testator was in good mental health. He confirmed the presence of the other witnesses too at the time of execution of the Will. He has clarified that since the deceased was blind he took help of the Chartered Accountant to put his mark on the Will. The witness has also deposed that at the time of execution of the Will the plaintiff was not present in and around the place where the Will was executed. A confusion was created at the time of argument by the learned Advocate for the defendants that, although, admittedly, testator was a blind man but how could he put his thumb impression to the Will has not been explained by the attesting witness. Therefore, it is the duty of the propounder to remove the suspicion as to how the Will was prepared and signed by the testator.
In question no.71 (cross by the learned Counsel for the defendants on 27th April, 2017) the witness was asked "If late Budhmal Kulthia was absolutely blind then how could he see other persons signing the alleged Will?/ The Chartered Accountant was asking everybody to put their signatures and he was present there." It was further clarified by the witness in question no. 88 when he was asked "Who had read this Will out?/The Chartered Accountant." Therefore, this is not unknown to the learned Advocates as to how the Will was executed but still at the time of argument several questions were raised based on suspicious circumstances. According to the defendants, the Will is vitiated because of such suspicious circumstances which I have just now discussed.
Another question has been raised by the learned Advocates for the defendants that, although, five persons signed the Will as attesting witnesses, but only one has been produced before this Court. It is settled law that in order to prove the execution of the Will only one witness is sufficient as per requirement under Section 68 of the Evidence Act. Section 68 of the Evidence Act says that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. Section 68 of the Indian Evidence Act is set out below:-
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
The document being a 'Will' it is required to be attested by witnesses but in view of Section 68, one attesting witness would be sufficient to prove the execution, what has exactly been done in the present case. The plaintiff Sampat Devi Kulthia, also presented herself before this Court for deposition and she was thoroughly cross-examined by the defendants' Advocates on number of days to their satisfaction. Sampat Devi Kulthia deposed before this Court that deceased was her father-in-law and was married at an age when she was twelve years and lost her husband in the year 2002. The plaintiff identified the thumb impression of the deceased in her evidence and in this respect the following questions and answers in question nos. 29-37 and 43-56 are set out hereinbelow:-
"29. Who has put that thumb impression on the said slips?/ My father in law."
"30. Are you aware of the thumb impression of your father in law?/ Yes."
"31. Where were you when he put this thumb impression?/I was present there at that time."
"32. Who has issued these two slips?/ From the bank."
"33. Please encircle the thumb impression on two slips?/ yes. (witness encircles in red). (Tendered and marked as Ext. E collectively)."
"34. (Shown original of serial no.21 at page 42 of the Judge's Brief of Documents) - who has put thumb impression on this document?/My father in law."
"35. Are you aware of his thumb impression?/Yes."
"36. Did he put this impression in your presence?/ Yes, that is so."
"37. Please encircle the thumb impression appearing on the document?/ Yes. (witness encircles in red) (Tendered and marked as Ext. F collectively."
"43. (Shown two documents appearing as item nos. 8 and 25 at pages 24 and 48 of the Judge's Brief of Documents) - what these documents are about?/ These are copies of the income tax return."
"44. Whose thumb impression is appearing at the bottom of this document?/ This is of my father in law."
"45. In whose presence did he put his thumb impression?/ In my presence. (Tendered and marked as Ext. G collectively)."
"46. (Shown two documents dated 5.6.1999 being item nos. 30 and 31 appearing at pages 53 and 54 of the Judge's Brief of Documents respectively) - what these documents are about?/ I cannot read English."
"47. Who has put the thumb impression on this document?/ This is the thumb impression of my father in law."
"48. Was this document executed in your presence?/ Yes."
"49. Do you think this is a letter?/ Yes, this should be a letter. (Tendered and marked as Ext. H collectively)"
"50. (Shown a document dated 13.6.1995 appearing as item no. 10 at page 27 of the Judge's Brief of Documents) - what this document is about?/ This is a letter given to Bank of Baroda."
"51. Whose thumb impression appears on this document?/ My father in law."
"52. Was this document executed in your presence?/ Yes."
"53. Was this thumb impression put in your presence?/ Yes. (Tendered and marked as Ext. I.)"
"54. (Shown a document dated 15.11.1971 appearing as item no. 23 at page 44 of the Judge's Brief of Documents) - what this document is about?/ I cannot make out what this document is about."
"55. Do you find any thumb impression on this document?/ Yes."
"56. Was this thumb impression put in your presence?/ Yes. (Tendered and marked as Ext. J)."
She has stated that she is the only beneficiary under the Will executed by her father-in-law. Even in cross-examination she deposed that her father-in-law, the testator, was in good health both mentally and physically and that he used to consult others after his son's accidental death in 2002. Despite thorough cross- examination, nothing substantial could be elicited, nor this witness, Sampat Devi Kulthia, could be shaken at all and, therefore, it can be presumed that her testimony is above any doubt.
From the evidence of Sampath Devi Kulthia it appears that plaintiff has been married to the family and lost her husband in an accident sometime in 2002. The testator executed his last Will and Testament on 26th October 2002 and bequeathed his entire properties and assets to her. The testator was a blind man and he drafted the will in Hindi language wherein he put his thumb impression and as a matter of fact the two defendants also signed on the said original will prepared in Hindi language. The signature on the will by the defendants is not denied.
This is a Will executed by father-in-law in favour of the daughter-in-law bequeathing his entire estate together with his widow who is no more in this world. In the Will the testator said "... a) after my death my share in the said property shall be received by both Bhanwari Devi and Sampat Devi..." This Bhanwari Devi is the widow of the testator and Sampat Devi is the plaintiff. Therefore, it can be concluded that the propounder hereself and also through one of the attesting witnesses, has been able to prove the Will and Testament dated 26th October, 2002 executed by the testator. While arguing the case Mr. Bose, learned Senior Counsel referred to the decision in the case of Shashi Kumar Banerjee & Ors. - Vs. - Subodh Kumar Banerjee (since deceased) Through LRs., reported in AIR 1964 SC 529. The decision of the Hon'ble Apex Court lays down the well-known principles of acceptance of a 'Will' as genuine. In the said judgment it has been categorically laid down by the Hon'ble Apex Court that the mode of proving a 'Will' does not ordinarily differ from that of proving any other document except such as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.
This issue so far discussed herein, in my view, although, argument was advanced on behalf of the defendants raising suspicious circumstances, there is no doubt that the tests under Section 63 have been fully complied with as evident from the deposition of the propounder as well as the attesting witness. In the second issue I shall discuss about the suspicious circumstances raised by the defendants.
Issue No.1 is answered in the affirmative.
Issue No.2 : I have already pointed out that the defendants have, although, filed their affidavits in support of caveat which are now treated as the written statement but no evidence has been led in support thereof. The defendants have not appeared in the box to justify the averments made in their written statement. It is the settled law that if a party does not make available himself for being examined in box his pleading in a case cannot be considered to be an evidence. Therefore, whatever allegations have been made by the defendants ought to have been tested in the box and for that the defendants should have produced themselves in the box to enable the plaintiff to cross-examine them to reveal the truth. Learned Counsel appearing for the defendants have cross-examined the plaintiff but in their turn they did not present themselves in the box.
The defendants alleged in their written statement (although, no evidence has been led in support thereof) that there has been undue influence in the creation of the Will. If the basic requirements of Section 63 are complied with in regard to execution of a valid Will and according to the ratio as laid down in the aforesaid judgment in the case of Shashi Kumar Banerjee (supra) in my view, the onus is now on the defendants to prove that they have been able to lead clear evidence in support of such undue influence and/or fraud or other allegations as mentioned in their written statement. In the written statement the defendant has said that the Will is false, fabricated and manufactured document and that the thumb impression appearing on the Will is not that of the testator. So far proof is concerned, it is only the attempt made by the learned Advocates at the time of argument by filing written notes of argument separately by defendant no.1 and defendant no.2, although, on perusal of those written notes of argument it appears that one is the verbatim reproduction of the other from paragraph 1 to
77. Only some more things have been added in the written notes of argument of defendant no.2, that is, from paragraph 78 onwards. In the written notes of argument various questions have been raised as to the genuineness of the Will. It has been pointed out by the learned Advocates that, although, thumb impressions were put on each page but the attesting witness has not identified the thumb impression which is not correct as I have already explained hereinbefore. In the English translation as well as in the original Will written in Hindi it is very much appearing that the thumb impression has been identified by the attesting witness, who put his thumb impression in presence of attesting witness and who is in sound health. So far the thumb impression on the other pages are concerned, it is true that no separate certificate has been given and in my view, that is not necessary when nobody disputes the thumb impression of the testator. In bare eyes I also do not find that the one thumb impression differs from the other. When this is the position, why the Court should allow the defendant to argue that the thumb impression is not genuine? The learned Advocates for the defendants pointed out that no explanation has been given as to who is the scribe of the original Will (Ext. 'A'). This Court is sorry to say that either the learned Advocates have not gone through the deposition of the witnesses or this is their deliberate act to mislead the Court that nothing has been spelt out by the witness as regards the writing of the Will. The attesting witness has already proved the Will, therefore, the suspicion raised by the defendants particularly the learned Advocates in their written argument, are not acceptable. While deciding this issue, one question requires to be answered which has been raised in the written argument by the learned Advocates that the Will is not genuine because the testator could not have deprived his legal heirs particularly the defendants who are the married daughters of the testator and on this aspect Mr. Basu, learned Senior Counsel, has relied on a decision in Ramabai Padmakar Patil (Dead) Through LRs. - Vs. - Rukminibai Vishnu Vekhande & Ors., reported in (2003) 8 SCC 537. In this case the Hon'ble Apex Court has followed the ratio of the decision in the case of Shashi Kumar Banerjee (supra) and held - "A will is executed to alter the mode of succession and by the very nature of proceedings it is bound to result in either reducing or depriving the share of natural heir." Therefore, the argument advanced by the learned Advocates for the defendants has been clearly answered in this case. Mere conjecture and unfounded suspicion should not stand in the way of accepting a valid Will. In Madhukar D. Shende - Vs. - Tarabai Aba Shedage, reported in (2002) 2 SCC 85 it has been held by the Hon'ble Apex Court that -
"The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers."
Their Lordships in the said decision has further held -
"The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict. - positive or negative."
I believe I have done my job properly to dispel the suspicion raised by the defendants. One more suspicion has been pointed out by the defendants in their written notes of argument which is required to be clarified now. The issue has been raised in the written notes of argument by the learned Advocates for the defendant that, although, a Notary Public was present but he has not identified the thumb impression of the testator. According to the provision of Section 63, although, neither a Will is required to be authenticated by a Notary, nor is to be registered but still the question has been raised as to why the Notary was present and he put his signature in the Will and according to the defendants, this may be a suspicious circumstance. On perusal of the Will it appears that the Notary has put his seal and signature on all the pages of the Will. In the first page, above the thumb impression of the testator, in the second page, above the thumb impression of the testator, in the third page, above the thumb impression of the testator and in the last page, he has put his seal after the certificate issued by the attesting witness and he has put the seal and signature immediately after that certificate. On perusal of the last page of the Will, it appears that the testator put his mark (Left Thumb Impression) - (Ext. 'A1') thereafter the certificate of the attesting witness, who signed on the left hand side (Ext. 'A2') and thereafter on the available space, the Notary signed.
It is pertinent to point out that the usual seal of the Notary is "signature duly attested by me". The word 'signature' has been penned through by the Notary in his own handwriting and instead he has written 'LTI'. This shows that the Notary was very much vigilant and he, after applying his mind, put his signature and seal.
The learned Advocates for the defendants have relied on the following decisions in -
• Bharpur Singh & Ors. - Vs. - Shamsher Singh, reported in AIR 2009 SC 1766;
• Niranjan Umeshchandra Joshi - Vs. - Mrudula Jyoti Rao & Ors., reported in AIR 2007 SC 614;
• Apoline D'Souza - Vs. - John D'Souza, reported in AIR 2007 SC 2219; and • B. Venkatamuni - Vs. - C.J. Ayodhya Ram Singh & Ors., reported in (2006) 11 SCALE 149.
The ratio decided in all the decisions above has already been discussed earlier. In the decision of Bharpur Singh (supra) it has been categorically stated that a Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925, and Section 68 of Evidence Act, 1872. It has already been discussed in detail about the provisions of Section 63 particularly sub-section (c) and I have shown how this provision has been complied with by the propounder. The attesting witness deposed before the Court and clarified the suspicions raised by the defendants. This decision itself says about Section 68 of the Evidence Act, 1872 which I have also discussed in the preceding paragraphs.
In the case of Niranjan Umeshchandra Joshi (supra) the Hon'ble Apex Court has discussed about a Will if shrouded by suspicious circumstances. In this decision Court has raised a question whether the disposition by the testator was unnatural disposition or not. Court has pointed out that no reason was given as to why he has chosen one son alone for taking entire benefit of legacy and Doctor was not examined to show whether the testator was mentally fit or not. In the case at hand the tests are satisfied. Reason has been given by the testator himself as to why he has bequeathed in favour of his widow and daughter-in-law. He said that the daughter-in-law came to his family at the age of twelve years and she was like her daughter and, therefore, after the sudden, untimely, death of his son, Ashok, he has nothing to do except to protect the widow left by the said predeceased son and that is the reason he made the Will in favour of the daughter-in-law and his wife.
The case of Apoline D'Souza (supra) is totally different. The only attesting witness admitted that she had put her signature on a handwritten Will whereas the Will, in fact, being typed in Kannada language and, therefore, Court reversed the grant of probate holding that due execution of the Will was not proved. The ratio of the decision is not applicable in the present case.
The last decision in the case of B. Venkatamuni (supra) reiterates the issue of attesting witness and whether one attesting witness is sufficient according to the provisions of Section 68 of the Indian Evidence Act, 1872 or not. The ratio of the decision supports the case of the plaintiff.
Learned Advocates for the defendants have sought to argue before this court the provision under the Notaries Act, on the various functions of the Notaries which do not support such act of the Notary while attesting the Will. Even if for the sake of argument it is considered that the Notary was not present at the time of execution of the Will, whether this can raise a suspicious circumstance and whether this can be a ground for cancellation of the Will. In my considered view, this is not at all necessary. Because one need not traverse any other provisions beyond the requirements mentioned under Section 63 of the Indian Succession Act, 1925 and since I am satisfied fully both on the pleadings as well as the evidence on record that the Will is a genuine Will and I have no doubt in my mind that the mark was put by the testator. There can be no reason to be swayed by any suspicious circumstances. However, Section 8 of the Notaries Act, 1952 describes about the functions of Notaries which says various instances what the Notary can do. Sub-section (1) of Section 8 clause (ix) says that a Notary can verify, authenticate, certify or attest the execution of any instrument. I find the Notary has struck off the word 'signature' and put 'LTI' in his own handwriting and because of this even if there was any suspicion that suspicion has been removed.
The other two issues, namely, issue nos. 3 and 4 need not be dealt with in detail as I have already discussed the same in the earlier issues. Since I have held that the Will is genuine and there is no difficulty for this Court to pass an order for grant of letters of administration in respect of the said Will and Testament dated 26th October, 2002 of the deceased, Budhmal Kulthia, there is no difficulty to hold that the plaintiff is entitled to get the order of grant as sole beneficiary of the said Will and Testament of the deceased with effect throughout the Union of India.
The suit is, accordingly, decreed in terms of prayer (c) of the plaint. Department is directed to draw up and complete the decree as expeditiously as possible.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
(Sahidullah Munshi, J.)